Last changed: Thuesday, the 1st of April 2023
Definitions
Potvos: Wingmen Ltd. – Potvos division, established at Kempische Steenweg 311, 3500 Hasselt under VAT no. BE069.1905.750.
Client: the person with whom Potvos has concluded an agreement.
Parties: Potvos and the client together.
Consumer: a customer who is an individual and who acts as a private person.
Applicability of general terms and conditions
These conditions apply to all quotations, proposals, work, orders, agreements and deliveries of services or products by or on behalf of Potvos.
The parties may deviate from these terms and conditions only if they have expressly agreed to do so in writing.
The parties expressly exclude the applicability of additional and/or deviating general terms and conditions of the customer or third parties.
Offers and quotations
Offers and quotations of Potvos are non-binding, unless explicitly stated differently within the offer or quotation.
An offer or quotation is valid for a maximum of thirty calendar days, unless another acceptance period is stated in the offer or quotation.
If the client does not accept an offer or quotation within the applicable period, the offer or quotation expires.
Offers and quotations do not apply to backorders unless the parties have explicitly agreed to this in writing.
Acceptance
Upon acceptance of an offer or quotation without obligation, Potvos reserves the right to withdraw the offer or quotation within three days of receipt of the acceptance, without the client being able to claim any rights.
Verbal acceptance by the client only binds Potvos after the client has confirmed it in writing (or electronically).
Prices
All prices used by Potvos are in euros, are VAT exclusive and exclude any other costs such as administration costs, catering costs, taxes and travel, shipping or transport costs, unless expressly stated or agreed otherwise. For consumers, prices including VAT may also be proposed.
All prices that Potvos uses for its products or services, on its website or which are otherwise disclosed, Potvos may change at any time. Prices on the website are non-binding.
Increases in the cost price of products or parts of them, which Potvos could not foresee at the time of making the offer or entering into the agreement, may give reason for price increases.
The consumer has the right to dissolve an agreement as a result of a price increase as referred to in paragraph four, unless the increase is due to a legislative regulation.
The price related to a service is determined by Potvos based on the actual hours spent and materials used.
The price will be calculated according to Potvos' usual hourly, half-day and full-day tariffs applicable to the period in which he performs the work, unless a different hourly rate has been agreed upon.
If the parties have agreed on a total price for a service provided by Potvos, this is always a target price, unless the parties have explicitly agreed in writing on a fixed price, which cannot be deviated from.
Potvos is entitled to deviate up to 10% from the target price.
If the target price is going to be higher than 10%, Potvos must inform the client in a timely manner why a higher price is justified.
If the guide price exceeds the guide price by more than 10%, the customer has the right to cancel the part of the order that exceeds the guide price plus 10%.
Potvos is authorized to adjust the prices on a monthly basis.
Prior to their effective date, Potvos will communicate price adjustments to the customer.
The consumer has the right to terminate the agreement with Potvos if he does not agree with the price increase.
Payments and period of payment
Potvos may require a deposit of up to 50% of the agreed amount when concluding an agreement.
The client must make payments in arrears within thirty calendar days of delivery of the product.
Payment deadlines are considered as fatal payment deadlines. This means that if the client has not paid the agreed amount at the latest on the last day of the payment term, he is legally in default and in breach of contract, without Potvos having to send the client a reminder or give notice of default.
Potvos reserves the right to make delivery subject to immediate payment or to require a security for the total amount of the services or products.
Consequences for not paying on time
If the client fails to pay within the agreed term, Potvos is entitled to charge interest of 1% per month from the day the client is in default, whereby a part of a month is counted as a whole month.
If the client is in default, he will also owe extrajudicial collection costs and any damages to Potvos.
If the client fails to pay on time, Potvos may suspend its obligations until the client has fulfilled its payment obligation.
If the client does not pay in time, copyrights for used works and portrait rights are not covered.
In case of liquidation, bankruptcy, attachment or suspension of payment on the part of the client, the claims of Potvos on the client are immediately claimable.
If the client refuses to cooperate in the execution of the agreement by Potvos, the client is still obliged to pay Potvos the agreed price.
Right of advertising
Once the client is in default, Potvos is entitled to claim the right of advertising regarding the unpaid products delivered to the client.
Potvos invokes the right of advertising by means of a written or electronic statement.
As soon as the client is informed of the claimed right of advertising, the client must immediately return any products to which this right relates to Potvos, unless the parties agree otherwise. In addition, it is not permitted to use the supplied images and/or sounds in any form whatsoever and they must be removed immediately.
The costs for retrieval or return will be borne by the client.
Right of revocation
Once Potvos has made video or sound recordings on behalf of the client or its processing, it is not possible to cancel the services.
If a production is cancelled by the client even before video or sound recordings have been made by Potvos, the client must pay the cost of the preparation made which includes but is not limited to: purchased materials, rented materials and services already provided such as preparation and planning of the production.
Right of Suspension
Unless the customer is a consumer, the customer waives the right to suspend the performance of any obligation arising from this agreement.
Right of retention
Potvos may invoke its right of retention and in that case hold products of the client until the client has paid all outstanding invoices to Potvos, unless the client has provided sufficient security for those costs.
The right of retention also applies by virtue of previous agreements from which the customer still owes payments to Potvos.
Potvos is never liable for any damages that the customer may suffer as a result of the exercise of his right of retention.
Settlement
Unless the customer is a consumer, the customer waives its right to set off any debt owed to Potvos against any claim against Potvos.
Retention of title
Potvos remains the owner of all products delivered until the client has fully satisfied all its payment obligations to Potvos pursuant to any agreement entered into with Potvos, including claims for failure to perform.
Until that time, Potvos may invoke its retention of title and repossess the goods.
Before ownership is transferred to the client, the client may not pledge, sell, dispose of or otherwise encumber the products.
If Potvos invokes its retention of title, the agreement is deemed to be dissolved and Potvos is entitled to claim damages, lost profit and interest.
Delivery
If the agreed amounts are not paid or not paid on time, Potvos is entitled to suspend its obligations until the agreed part is paid afterwards.
In case of late payment, there will be creditor default, with the consequence that the client cannot hold a late delivery against Potvos.
Delivery time
The delivery times quoted by Potvos are indicative and when exceeded do not entitle the client to termination or compensation, unless the parties have expressly agreed otherwise in writing.
The delivery time commences after the offer to Potvos, signed for approval by the client, has been confirmed in writing or electronically by Potvos to the client.
Exceeding the stated delivery time does not entitle the client to compensation or the right to dissolve the agreement, unless Potvos is unable to deliver within fourteen days following a written reminder to do so or the parties have agreed otherwise in this regard.
Actual delivery
The customer must ensure that the actual delivery of the products ordered by him can take place in a timely manner.
Transportation costs
Transportation costs shall be borne by the customer, unless the parties have agreed otherwise in this regard.
Insurance
The customer undertakes to adequately insure and keep insured the following items against fire, explosion and water damage as well as theft: delivered items necessary for the execution of the underlying agreement
Potvos goods present on the premises of the client
goods delivered under retention of title
The client will make the policy of such insurance available for inspection at Potvos' first request.
Retention
If the customer takes delivery of ordered products later than the agreed delivery date, the risk of any loss of quality shall be borne entirely by the customer.
Any additional costs resulting from premature or delayed acceptance of products shall be borne entirely by the customer.
Execution of the agreement
Potvos will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
Potvos has the right to have the agreed service provision performed (in part) by third parties.
The performance of the agreement will take place in mutual consultation and after written agreement and payment of any agreed advance by the client.
It is the responsibility of the client to ensure that Potvos can begin execution of the agreement in a timely manner.
If the client has not ensured that Potvos is able to begin performance of the agreement in a timely manner, the resulting additional costs and/or additional hours shall be borne by the client.
Provision of information by the client
The client shall make all information, data and documents relevant for the correct execution of the agreement available to Potvos in a timely manner and in the desired form and manner.
The client guarantees the accuracy, completeness and reliability of the information, data and documents made available, even if they originate from third parties, to the extent that the nature of the agreement does not dictate otherwise.
If and to the extent requested by the client, Potvos will return the relevant documentation.
If the client fails to make available information, data or documents reasonably required by Potvos, or fails to do so on time or properly, and the performance of the agreement is delayed as a result, the extra costs and extra hours arising therefrom will be for the account of the client.
Duration of the agreement
The agreement between Potvos and the client is entered into for the duration of approval quotation to delivery requested works, unless something else follows from the nature of the agreement or the parties have expressly agreed otherwise in writing.
If an agreement has been entered into for a definite period, it will be automatically converted into an agreement for an indefinite period of time, unless one of the parties terminates the agreement with due observance of a notice period of two months, or a consumer terminates the agreement with due observance of a notice period of one month, in which case the agreement ends by operation of law.
If, within the term of the agreement, the parties have agreed on a deadline for the completion of certain work, this is never a fatal deadline. If this term is exceeded, the client must give Potvos written notice of default.
Intellectual property
Potvos retains all intellectual property rights (including copyright, patent rights, trademark rights, drawings and models rights, etc.) to all designs, drawings, writings, carriers containing data or other information, quotations, images, sketches, models, maquettes, etc., unless the parties have agreed otherwise in writing.
The client is not allowed to copy, show and/or provide to a third party or otherwise use said intellectual property rights without the prior written consent of Potvos.
Confidentiality
The client shall keep all information received (in whatever form) from Potvos confidential.
The same applies to all other information concerning Potvos of which he knows or can reasonably suspect that it is secret or confidential, or of which he can expect that its distribution could harm Potvos.
The Customer shall take all necessary measures to ensure that he also keeps the information mentioned in paragraphs one and two secret.
The duty of confidentiality described in this article does not apply to information: which was already public before the customer learned of it or which subsequently became public without being the result of a breach of the customer's duty of confidentiality
that is disclosed by the customer pursuant to a legal obligation
The confidentiality obligation described in this article applies for the duration of the underlying agreement and for a period of three years after its expiration.
Indemnification
The client indemnifies Potvos against all third party claims related to the products and/or services provided by Potvos.
Complaints
The client must examine a product supplied or service rendered by Potvos for any shortcomings as soon as possible.
If a delivered product or service provided does not comply with what the client could reasonably expect from the agreement, the client must notify Potvos as soon as possible, but in any event within one month of the discovery of the shortcomings.
Consumers must notify Potvos at the latest within two months of the discovery of the shortcomings.
The client should provide a description of the failure in as much detail as possible, so that Potvos is able to respond adequately.
The client must demonstrate that the complaint relates to an agreement between the parties.
If a complaint relates to work in progress, this cannot in any event result in Potvos being obliged to carry out work other than that agreed.
Notice of default
The client must give written notice of default to Potvos.
It is the responsibility of the client to ensure that a notice of default actually reaches Potvos (in a timely manner).
Joint and several liability of the client
If Potvos enters an agreement with several customers, each of them will be jointly and severally liable for the full amounts owed to Potvos under that agreement.
Liability of Potvos
Potvos shall only be liable for any damage suffered by the client if and to the extent that such damage is caused by intent or deliberate recklessness.
If Potvos is liable for any damage, it is only liable for direct damage arising from or related to the performance of an agreement.
Potvos is never liable for indirect damages, such as consequential damages, lost profits, missed savings or damages to third parties.
If Potvos is liable, such liability is limited to the amount paid out by any (professional) liability insurance taken out, and in the absence of (full) payment by an insurance company of the amount of damage, liability is limited to (part of the) invoice amount to which the liability relates.
All images, photos, videos, colors, drawings, descriptions on the website or in a catalogue are only indicative and are only approximate and cannot be a reason for compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.
Expiry period
Any right of the client to claim compensation from Potvos shall in any event expire twelve months after the event from which the liability arises directly or indirectly.
Right to termination
The client is entitled to dissolve the agreement if Potvos imputably fails to fulfill its obligations, unless such failure, given its special nature or minor significance, does not justify termination.
If the fulfillment of the obligations by Potvos is not permanently or temporarily impossible, then dissolution can only take place after Potvos is in default.
Potvos is entitled to dissolve the agreement with the client, if the client fails to comply with its obligations from the agreement in full or in a timely manner, or if Potvos becomes aware of circumstances that give it good grounds to fear that the client will not be able to properly fulfil its obligations.
Force majeure
A failure of Potvos in the fulfilment of any obligation to the client cannot be attributed to Potvos due to a situation independent of the will of Potvos, as a result of which the fulfilment of its obligations to the client is wholly or partly prevented or as a result of which the fulfilment of its obligations to the client cannot reasonably be required of Potvos.
The force majeure situation mentioned in paragraph one also includes - but is not limited to - the following: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverers or other third parties; unexpected power, electricity, internet, computer and telecom failures; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work interruptions.
If a force majeure situation arises that prevents Potvos from fulfilling one or more obligations to the client, such obligations will be suspended until Potvos can fulfil them again.
From the moment a force majeure situation has lasted for at least thirty calendar days, either party may terminate the agreement in writing, in whole or in part.
In a force majeure situation, Potvos is not due compensation, even if it enjoys any advantage as a result of the force majeure situation.
Amendment of the agreement
If, after the agreement has been concluded, its execution proves necessary to amend or supplement its contents, the parties shall amend the agreement accordingly in a timely manner and by mutual agreement.
Amendment of general terms and conditions
Potvos is entitled to amend or supplement these general terms and conditions.
Changes of minor importance may be made at any time.
As far as possible, Potvos will discuss major substantive amendments in advance with the client.
Consumers are entitled to terminate the agreement in the event of a material change to the general terms and conditions.
Transfer of rights.
Rights of the client arising from an agreement between the parties cannot be transferred to third parties without the prior written consent of Potvos.
Consequences of nullity or destructibility
If one or more provisions of these general conditions prove to be void or destructible, this shall not affect the other provisions of these conditions.
A provision which is void or destructible will in that case be replaced by a provision which comes closest to what Potvos had in mind when drafting the conditions on that point.
Applicable law and competent court
Any contract between the parties shall be governed exclusively by Belgian law.
The Belgian court in the district where Potvos is located has exclusive jurisdiction to take cognizance of any disputes between the parties, unless otherwise required by mandatory law.